C.M.Lodha, C.J. - (1.) The only point for determination in these connected special appeals under Section 18 of the Rajasthan High Court Ordinance is whether the notification dated Dec. 27, 1977, issued by the State Government in exercise of powers conferred under Rule 63 of the Rajasthan Minor Mineral Concession Rules, 1977, (which will hereinafter referred to as the Rules) is void and the leases of the stone quarries granted in pursuance of the said notification are liable to be set aside? The learned single Judge has allowed the writ petitions and struck down the notification as well as the leases granted in pursuance thereof and hence these appeals.
(2.) In order to appreciate the points canvassed before us we may refer to the relevant provisions of the Mines and Minerals (Regulation and Development) Act 16 of 1957, (which hereinafter will be referred to as the Act). Section 15 confers powers on State Government to make rules in respect of minor minerals and lays down that the State Government may, by notification in the Official Gazette, make rules regulating the grant of prospective leases and mining leases in respect of minor minerals and for purposes connected therewith. In exercise of the powers conferred by the aforesaid section, the Government of Rajasthan made the Rajasthan Minor Mineral Concession Rules, 1977. Rule 29 (1), which has been relaxed by the Government by the impugned notification, reads as under:- "29. Preferential right of certain persons -- (1) The rent-cum-royalty leases for all minerals excluding marble shall be granted to persons belonging to the following categories in the descending order of priority;- (i) manual workers in the mines; (ii) persons belonging to the scheduled castes/scheduled tribes; (iii) village artisans; (iv) landless labourers; (v) ex-soldiers including members of para military forces belonging to Rajasthan, who have been permanently disabled and the dependents of those who have been killed in action; and (vi) Rajasthan State Government servants who have become permanently disabled while on duty or the dependents of those who have been killed on duty; Provided that where two or more applications have been received for the same land, on the same day and from the persons belonging to such one of the categories as mentioned above, the competent authority, after taking into consideration the matters specified below, may grant lease to such one of the applicants as it may deem fit:-- (i) past experience in mining with reference to the scientific exploitation and conservation of minerals; (ii) willingness to set up a mineral based industry in the State; (iii) technical know how; (iv) financial soundness and stability; (v) number of mining leases held; (vi) any dues outstanding in his name or in the name of the firm of which he is/was a partner; Provided further that where no application is received from any of the persons belonging to the above categories within a period of fifteen days from the notified date of receipt of application in respect of the specified land, the rent-cum-royalty lease may be granted to any other person whose application was received earlier in order of time; Provided also that where two or more applications have been received on the same day and in respect of the same land from persons not belonging to any of the categories mentioned above the competent authority may grant lease to such one of the applicants as it may deem fit after considering the matter specified in the first proviso." Rule 63 provides that the Government may relax any provision of these rules in the interest of mineral development or better working of mines. It exercise of powers conferred under Rule 63 of the Rules, the State Government issued the following notification dated Dec. 27, 1977, marked Ex. 2 on the record:-- "In exercise of powers conferred under Rule 63 of the Rajasthan Minor Mineral Concession Rules, 1977, the State Government hereby relax the procedure prescribed for allotment of area on RCRL basis under Rule 29 of MMCRs, 1977 and lay down the following procedure for the purpose of deciding priority and allotment of area amongst applicants for rent-cum-royalty leases in the following areas:-- Place. District. 1. Nala-ka-Mataji Bhilwara. 2. Kathwara " 3. Paparbed " 4. Channa-ka-Badiya Jodhpur. 5. Golasmioor Bbakari " 6. Pabumagra " 7. Extension of Keru area " 8. Somnada " 9. Baleshwar " (2) These instructions will apply only to the newly opened areas and will not affect the areas which have already been allotted in the past. (3) Applications will be sorted out quarrywise. For each quarry, lists will be prepared of persons eligible for allotment. These lists will be prepared categorywise, viz., one list will be prepared for manual workers, another list will be prepared for persons belonging to the Scheduled castes/Scheduled tribes and of other categories under the provisions of Rule 29 of the Rajasthan Minor Mineral Concession Rules, 1977. These lists will be published at the office of the Mining Engineer/Asstt. Mining Engineer concerned and objections invited in a week's time. Applications along with objections will be decided by Asstt. Mining Engineer/ Mining Engineer the competent authority under the Rules in the presence of the local MLA, Pradhan, Sarpanch and an officer to be nominated by the Director of Mines and Geology and the concerned parties as are present. (4) For deciding priority amongst applicants falling under a particular category, lots will be drawn out of the eligible applicants in the presence of the people's representatives and the representative of the Directorate. First of all, lots would be drawn out of the eligible applicants of the first category. If there is no eligible candidate from the first category then lots would be drawn out of the eligible applicants falling under the second category. If still no eligible candidate is found even in that category, then lots would be drawn out of the category following next below and the process will be continued till all available plots are allotted. As soon as work relating to the allotment of lots is completed, a list of persons to whom quarries have been sanctioned will be prepared on the spot and put up on the notice board of the concerned Mining Engineer/Asstt. Mining Engineer office." The mines in question are situated in village Golasani shown at place No. 5 in the notification. All the applicants for the mines in question are manual workers. In accordance with the notification lots were drawn and leases were granted to the persons according to the result of the lots. The petitioner- respondents who had applied for lease but who did not get the same in lots which were drawn, filed writ petitions under Article 226 of the Constitution of India for quashing the notification and setting aside the leases granted under it. The appellants took a preliminary objection to the maintainability of the writ petitions on two grounds, namely, (i) that the order granting lease was appealable and the petitioners had already preferred appeal before the State Government and, therefore, the writ petitions did not lie. In this connection, it was contended that the remedy of revision to the Central Government under Section 30 of the Act was also available to them. Both these preliminary objections were overruled by the learned single Judge. On merits, the learned Judge held that the relaxation of Rule 29 by the impugned notification was bad inasmuch as under Rule 63 the Government could relax any provisions of the rules in the interest of mineral development or better working of the mines and since no interest of mineral development or better working of mines could be achieved by the impugned relaxation, the notification was bad. Consequently, the writ petitions were allowed and the impugned notification as well as the leases granted in accordance with the notification were struck down.
(3.) Mr. H.M. Parekh, learned counsel for the appellants, has pressed the preliminary objection as to the maintainability of the writ petitions before us. He has urged that since the respondent-petitioners had1 participated in drawing of lots and had taken chance for allotment in the impugned proceedings of drawing of lots, they cannot be allowed to question the validity of the notification by filing writ petitions. The second preliminary objection raised by Mr. Parekh is that the petitioners had availed of the alternative remedy of appeal which had not been decided and at any rate, there was further remedy by way of revision to the Central Government available to them and, therefore, the writ petitions were not enter-tainable.;